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July 28, 2009
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Mark Cleveland
President
Hobby Lobby International, Inc.
5614 Franklin Pike Cir.
Brentwood, TN 37027-4324
Re: File No. EB-08-SE-695
Dear Mr. Cleveland:
This is an official CITATION, issued to Hobby Lobby International, Inc.
("HLI") pursuant to Section 503(b)(5) of the Communications Act of 1934,
as amended ("Act"), 47 U.S.C. S: 503(b)(5), for marketing non-compliant
radio frequency devices in the United States in violation of Section
302(b) of the Act, 47 U.S.C. S: 302a(b), and Sections 2.803 and 15.209 of
the Commission's Rules ("Rules"), 47 C.F.R. S:S: 2.803 and 15.209, and
importing radio frequency devices without filing FCC Form 740 (or the
electronic equivalent) with the United States Customs and Border Patrol in
violation of Section 1.1203 of the Rules, 47 C.F.R. S: 1.1203. As
explained below, future violations of the Commission's Rules in this
regard may subject your company to monetary forfeitures.
By letter of inquiry ("LOI") dated March 5, 2009, the Spectrum Enforcement
Division of the Commission's Enforcement Bureau initiated an investigation
into whether HLI is marketing in the United States an unauthorized radio
frequency device, specifically, the Pilot View FPV 2400 video transmitter.
At the time of that letter, we observed on your website,
www.hobby-lobby.com, your marketing of the Pilot View FPV 2400 video
transmitter.
In your May 7, 2009, response to the LOI, you state that you began
marketing the Pilot View FPV 2400 video transmitter on May 12, 2008 and
have sold 109 units of the device in the United States. You indicate that
the manufacturer of the transmitter, Intelligent Flight, an Australian
company, represented to HLI that the device was FCC compliant. You also
indicate that HLI imported the transmitters, that HLI did not file any FCC
Form 740s for the imported units, and that the last date that a
transmitter was received was November 17, 2008, which is around the time
that HLI's contact at Intelligent Flight stopped responding to HLI's
requests for further information concerning the device. You indicate that
HLI sent a unit to a test lab, apparently prior to receipt of the
Division's LOI. After receiving the LOI, HLI contacted the test lab to
inquire about the test results and learned, for the first time, that the
device is not FCC compliant. You provide a copy of the test results, which
indicate that the device substantially exceeds FCC radiated emission
limits. You state that Hobby Lobby discontinued selling this device as
soon as it became aware that the device was not FCC compliant.
Section 302(b) of the Act provides that "[n]o person shall manufacture,
import, sell, offer for sale, or ship devices or home electronic equipment
and systems, or use devices, which fail to comply with regulations
promulgated pursuant to this section." Section 2.803(a)(1) of the
Commission's implementing regulations provides that:
no person shall sell or lease, or offer for sale or lease (including
advertising for sale or lease), or import, ship, or distribute for the
purpose of selling or leasing or offering for sale or lease, any radio
frequency device unless ... [i]n the case of a device subject to
certification, such device has been authorized by the Commission in
accordance with the rules in this chapter and is properly identified and
labeled as required by S: 2.925 and other relevant sections in this
chapter.
Pursuant to Section 15.201(b) of the Rules, 47 C.F.R. S: 15.201(b),
intentional radiators, such as the Pilot View FPV 2400, must be authorized
in accordance with the Commission's certification procedures prior to the
initiation of marketing in the United States. Moreover, intentional
radiators must comply with all applicable FCC technical standards,
including the radiated emission limits set forth in Section 15.209 of the
Rules. HLI admits that it marketed the Pilot View FPV 2400 video
transmitter in the United States and that this device does not comply with
the FCC's radiated emission limits.
Under Section 2.1203 of the Rules, no radio frequency device may be
imported into the Customs territory of the United States unless the
importer declares that the device meets one of the conditions for entry
set forth in Section 2.1204 of the Rules. Pursuant to Section 2.1205, this
declaration must be filed electronically, where electronic filing with
Customs is available, or using FCC Form 740, where electronic filing with
Customs has not been implemented. HLI admits that it imported units of the
Pilot View FPV 2400 without making the required import declaration either
electronically or on FCC Form 740.
Accordingly, it appears that HLI violated Section 302(b) of the Act and
Sections 2.803 and 15.209 of the Rules by marketing in the United States
the Pilot View FPV 2400 transmitter. It also appears that HLI violated
Section 2.1203 of the Rules by importing the Pilot View FPV 2400
transmitter without making the required import declaration.
If, after receipt of this citation, you violate the Communications Act or
the Commission's Rules in any manner described herein, the Commission may
impose monetary forfeitures not to exceed $16,000 for each such violation
or each day of a continuing violation.
You may respond to this citation within 30 days from the date of this
letter either through (1) a personal interview at the Commission's Field
Office nearest to your place of business, or (2) a written statement. Your
response should specify the actions that you are taking to ensure that you
do not violate the Commission's Rules governing the marketing and
importing of radio frequency equipment in the future.
The nearest Commission field office is the Atlanta Office, in Duluth,
Georgia. Please call Samantha Peoples at 202-418-1101 if you wish to
schedule a personal interview. You should schedule any interview to take
place within 30 days of the date of this letter. You should send any
written statement within 30 days of the date of this letter to:
Kathryn Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Federal Communications Commission
445-12th Street, S.W., Rm. 3-C366
Washington, D.C. 20554
Under the Privacy Act of 1974, 5 U.S.C. S: 552(a)(e)(3), we are informing
you that the Commission's staff will use all relevant material information
before it, including information that you disclose in your interview or
written statement, to determine what, if any, enforcement action is
required to ensure your compliance with the Communications Act and the
Commission's Rules.
The knowing and willful making of any false statement, or the concealment
of any material fact, in reply to this citation is punishable by fine or
imprisonment under 18 U.S.C. S: 1001.
Thank you in advance for your anticipated cooperation.
Sincerely,
Kathryn Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Federal Communications Commission
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Steve Fuqua,
Vice President, Hobby Lobby International (March 5, 2009).
See Declaration of Thomas J. Graves (May 7, 2009) ("LOI Response"). Mr.
Graves indicates that he was President of HLI through February 17, 2009,
and is currently a consultant retained by HLI.
See 47 C.F.R. S: 15. 209. HLI does not indicate in its LOI response
whether the Pilot View FPV 2400 video transmitter ever received a grant of
equipment certification or is labeled with an FCC Identification number.
Section 15.3(o) of the Rules defines an "intentional radiator" as a
"device that intentionally generates and emits radio frequency energy by
radiation or induction." 47 C.F.R. S: 15.3(o).
Section 2.803(e)(4) of the Rules defines "marketing" as the "sale or
lease, or offering to sale or lease, including advertising for sale or
lease, or importation, shipment or distribution for the purpose of selling
or leasing or offering for sale or lease." 47 C.F.R. S: 2.803(e)(4).
See 47 C.F.R. S: 15.209.
See 47 C.F.R. S: 2.1203.
See 47 C.F.R. S: 2.1204.
See 47 C.F.R. S: 2.1205.
See 47 C.F.R. S: 1.80(b)(3).
Federal Communications Commission DA 09-1626
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Federal Communications Commission DA 09-1626
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554